I was lucky enough to, like certain other bloggers, attend the debate-cum-conversation between Justices Scalia and Breyer last night. There were any number of interesting things to note about the discussion (starting with Justice Breyer's cellphone going off, and going from there), but what caught my attention in particular was Justice Scalia's discussion of originalism.

I'm sure this is covered in A Matter of Interpretation, but I was startled to realize that his version of original meaning interpretation is based not just around the original definition of a particular phrase or clause, but on how people at the time expected that definition to be applied, as well. To take an example brought up last night: the Equal Protection Clause could not, on this reading, include a right to same-sex marriage, because the people who drafted the clause clearly did not expect that it would extend to same-sex marriage. (As Justice Scalia did last night, this point can also be extended to abortion, capital punishment, nativity displays, etc).

I'm troubled by this. I do find the basic Barnett/Whittington originalist argument, that words ought to have fixed meanings, and that the best source for those meanings in constitutional interpretation is their meaning at drafting, intuitively convincing. But, to use Michael Perry's phrasing, even if we are constrained by the original meaning of a given "constitutional imperative" adopted at the founding, why should we be constrained by what the founders thought about "the implications of that imperative"? I like the idea that words should have fixed meanings, and that jurisprudence should be kept as closely moored to that meaning as possible. Beyond that, however, I don't see a reason why our application of the meaning of a clause should be constrained by how the framers would have applied that same meaning. It's one thing to freeze the meaning of a text in 1787; it's quite another to freeze society there, too. I'm afraid Justice Scalia's method of interpretation elides that distinction. (Bracket, for now, the problem of how his method includes, inter alia, Brown and Loving).

I realize that my comparative advantage on this site isn't Supreme Court analysis, but I was suprised not to see anywhere else a discussion of Justice Thomas's amusing footnote in dissent in yesterday's Lopez v. Gonzalez. So, without much further comment, here it is:

In its discussion of whether possession may constitute “trafficking,” the Court takes its own trip “through the looking glass.” See ante, at 6. “Commerce,” according to the Court, “certainly … is no element of simple possession … .” Ante, at 5. Not long ago, the Court found the opposite to be true when interpreting the scope of Congress’ power under the Commerce Clause. See Gonzales v. Raich, 545 U. S. 1, 22 (2005) (plurality opinion) (concluding that Congress may regulate the mere possession of marijuana as affecting “commerce”). In Raich, the Court fell into the very trap it purports to identify today by “turn[ing] simple possession into [commerce], just what the English language tells us not to expect.” Ante, at 6; see also Raich, supra, at 57–58 (Thomas, J., dissenting). The Court’s broadening of the Commerce Clause stands in tension with its present narrow interpretation of “trafficking,” which 8 U. S. C. §1101(a)(43)(B) explicitly alters to include at least some possession offenses.

1) Because the idea that freshman college students are full adults with the concomitant freedom of contract is faintly ludicrous? Leaving aside the basic point that credit card companies make a particular effort to sign kids up right when they're most confused and disoriented (i.e., during Orientation week), the fact that colleges may have stopped being fully in loco parentis to their students doesn't mean the law should do likewise. Note that both of the amendments on offer specifically dealt with students under 21 who were still financially dependent on their parents, rather than people who are genuinely self-supporting and independent.

2) Because there's a contradiction between making government "more supportive of parents' efforts to support their children" and perpetuating a situation that undermines parents' ability to watch over their children and guide them away from financial pitfalls? Neither amendment, after all, prohibited the issuing of credit cards to minors; they simply required that the parents of such a minor be involved in the issuing process.

Why is it assumed that when a moderate red-state Democrat votes against a law that would restrict the ability of young people to get high-limit credit cards, that he must be "paying the [credit card] companies back for their support" of his campaign rather than defending a basic Hoosier instinct toward freedom of contract? Even more bizarre, why is one supposed to infer from this that the event somehow casts doubt on the candidate's character or honesty when he has been-- as Judis notes at the outset-- an open founder of "a caucus of self-described moderates" and "an honorary chair of another centrist group"?